HOW TO RESEARCH FOR LAW ESSAYS
HOW TO RESEARCH FOR LAW ESSAYS
Research is the place to start while beginning to write an essay. It goes without saying that some of an author's own theories and knowledge will find their way into the essay, and this is true of all writings. However, alongside your own theories and assertions that may or may not find their way into the final piece, essays often begin with a careful reading of some form of material, whether it is a judgement, case note, article, piece of legislation or a commentary—and this is particularly true for academic essays.
Thorough and targeted research allows you to focus on specific facts and details, and to decide whether and how they fit into your overall argument. You may choose to concentrate on a single paragraph, provision, or an entire article or case. This research will introduce you to a mix of sources. Some sources you may take in their entirety or and paraphrase. From some sources you may only analyse specific quotes in the context of a larger argument in your own essay. While with others source you may either agree or disagree with, making your argument insofar as it relates to the key argument at hand in your essay.
This leads onto the second step of interpretation. In essence, this is thinking about and reflecting on how and what you have found in your research that fits in with the rest of your argument. It is worth stating that whilst quotes, academic opinions, legislation and judgements form a considerable part of your essay, they are there to supplement the discussion of the main points. They should never dominate over your own academic voice, which is what voices your arguments. You are training to be a lawyer you have to argue your position. Your research requires that you gather information, case law, legislation an academic commentary, and that you thoroughly consider how these add up in your argument. Your essay is a study that should have its own voice.
Step 1: Read and Annotate
Imagine that you are reading a news article on the bus or on a train. Your mind is in a million different places whilst your eyes just unconsciously scan over the words on the page. You know what the words and sentences mean. You understand the context and meaning of the article and what it is saying. However, the second you step off the bus or train, close the article, or do something else; you have now forgotten every specific argument. Albeit for a vague idea of what the article was about. You do not hold any particularly nuanced or strong views about what you have just read, and you could not care less about what the central discussion was. This is what is known as passive reading. This is NOT how you want to approach your research. Not only will it take forever to read through everything, but you will be bored. Remember, an essay calls for a thorough understanding of the source material. You must engage with the central issues and points of contention relevant to the material. By doing so forming your own arguments in context of what you have read and understood. These are three things that passive reading fails to do, but are the main goals of active reading.
One of the main ways to engage in active reading is to not only read through an article, judgement, or piece of legislation, but to annotate it as well. To “annotate” means to underline or highlight key words and phrases, as well as making notes in the margins. This is important, as it makes us actively engage with a text and it forces us to pay attention and think with about the central argument. The purpose of doing the essay is to think with the writer or judge about the application and outcome of the law. This is the crucial difference in making the step from passive to active reading.
Step 2: Look For Theories, Patterns, Key Cases and Quotes
If you already have your central argument in mind and are looking for sources to help back up and/or create opposing arguments for your discussion, then that is great. You already have the first part of what is needed for a focused read of a relevant article, case law or legislation. Read through these sources, underline sections where the law in question is discussed or any quotes which help, or undermine your argument. Your job is to offer a new perspective or discuss an area of law or case you may not have thought about before. You can find great summaries of cases, either in judgements of other cases, or in articles written discussing a case or area of law. This provides for quick learning in a relevant area of law whilst doing your research. The ‘cases cited’ tab in Westlaw comes in really handy here. Make sure to note these down along with their full OSCOLA citation. Do not be the student that goes back at the end to do referencing, this is disorganised and opens you up to make mistakes.
Observe that your argument and views on areas of law can change and evolve as your research progresses. Maybe you discover a court ruling that conflicts with an argument presented earlier in your research, or an article that puts an entirely new spin on an argument you previously considered. Keep note of these contrasting, conflicting, and varying sources, and of key points mentioned in them. These can make for great discussion point when evaluating your argument in an essay.
If you do not have a clear idea yet of your argument and where it is headed, do not worry, it will start to take shape. If you are not confident or do not yet have much knowledge or analytical opinions a good rule of thumb is to read up on that area of law from a textbook or practitioner text which sets out the law succinctly and clearly. This will not necessarily go in the essay; it is just for your own knowledge and understanding of the subject. Make a note of the main points of law you need to know, as well as important cases mentioned in these texts.
Every area of law has a selection of ‘landmark cases’ that set out the relevant law and precedent for future cases. Moreover they have most likely attracted a lot of discussion and controversy. These cases are often good starting points for forming your arguments in the area your law essay question. You can refer to the ratio of the case, any noteworthy quotes by judges in the case (including obiter statements), and articles which discuss these cases.
There is a good chance the law lecturer has already complied a few articles in the reading list discussing these landmark cases. The cases themselves would also be highlighted in your lectures and tutorials as significant in the area of law discussed. In the articles, as well as taking note of the main arguments and key quotes, keep an eye out for the footnotes, as they can often point you towards further reading which may contain more points of discussion relevant to your essay. You are being assessed on wider reading so show the person reading your essay that you have done this.
When taking legal research notes, there are a few key formats you should follow to make your life easier:
1) For cases, write down the full citation of the case (eg. A v B [2022] 1 WLR 10), and then the ratio of the case just below, either in your own words or by finding the quote which is in reference to it. If you are referencing any quotes in the case summary or judgement of a case, then you have to take a note of the paragraph from where the quote came from (for example, if the quote was by Ross J in paragraph 20, you would write down Ross J: “quote” [20].) This makes it much easier to add OSCOLA footnotes to your final essay when you use the case and quote.
2) For articles and publications in academic journals, note down the author’s name, full title of the article, the year it was published (in brackets) and the full citation, which will often include the name of the journal, the volume number and page number or page range of the article (Check a OSCOLA Generator or the OSCOLA quick guide for a thorough explanation of this citation system). A good trick is to include a short title, which is what you will be using to refer to the article in subsequent footnotes after the article has been initially fully cited. So for example, it would look something like this:
Authors full name, title of article (year) |volume| |Journal name| |page| |page of quote|
SHORT TITLE: Authors surname, shortened title of article (n…) |page of quote|
The (n…) will have a number inside the bracket. This number will be the number of the footnote where that same article will first be referenced in your essay. You will only know what this number will be when you start writing your final draft, so keep it blank for now and fill in the footnote number later. This way, whenever you have to reference the same article, you can copy and paste this short title from your notes and save the words as you will be restricted by word count.
3) For legislation or rules (eg. statutes or CPR provisions) these are more self-explanatory. State the name of the legislation (eg. Human Rights Act 1998) and then followed by the relevant sections referred to. Use quotation marks where you are using the direct wording of the provision.
For example: Human Rights Act 1998
s3(1): “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
For an in-depth guide on citations, see the official 4th Edition OSCOLA guide. It is a fairly straightforward and intuitive citation system, but it is essential that you get used to using it. Every legal essay will require it, so get used to it early on.
Step 3: Interpretation: Ask Questions About the Law
So, you have started making a note of relevant law, cases and quotes from articles and journals etc. all of which have been highlighted annotated in the main body of text from where you have read it from…now what?
At this point, ideas should start flowing about what your general arguments in the essay are going to be. You will have statements of relevant legal authority, quotes from academic journals and articles, and legal principles and theory floating around in your head, and ideally you want to get as much of this down as possible. Ask yourself questions relating to the material which will generate points of interest related to the central argument of your essay. So, for example, if your essay is about how Part 36 of the CPR is problematic for the lay client, you will want to ask yourself questions such as:
• How is it problematic or difficult for clients to use?
• If yes/no, what pieces of legal authority illustrate my point?
• Do any court decisions and cases draw on this argument?
• How does what I have quoted illustrate my point?
• Are there any specific words that I can quote which relates to my argument here?
• Are there any academic sources on Part 36 that make similar or differing points?
• If so, what do they argue?
• Do I agree with their arguments?
• If yes/no, why? How can they be improved? etc.
These are the kinds of questions that should be running through your mind when you analyse legal sources. The answers to these questions are what you are going to write down in your notes just under the title and quotes for the relevant articles or case citations. For ease of access, you will want to differentiate between the quotes and paraphrasing of what you have read (which are all citeable), from your own words and arguments. A good way to do this is to highlight your own words and arguments relating to each section in a different colour to the black text (the quotes), or use a different font for your own arguments compared to that of the quoted texts (just remember to make your final essay all the same font of course).
Common Pitfalls
Be careful to not fall into the trap of only annotating or taking note of quotes and case decisions that you agree with or that support your argument. If you spot an academic interpretation or discussion that provides an alternate viewpoint or argument to one you have previously considered, or a criticism of the way a case was decided, make sure to note down the article, page number and quote (or paraphrasing of the main argument, whichever is most applicable). A fundamental part of what makes a great essay, or a great debate or analysis in general, is considering different viewpoints and evidence that can add real depth and texture to your argument. After all, an ‘argument’ is simply a multi-faceted discussion on an area of contention, and contention needs to exist in the area your essay is analysing. Without contention, analysis and arguments, your essay is dead in the water.
Secondly, when researching case law and legislation, make sure to check whether it is still good law, and that they have not been repealed or overruled. Of course, if you are using an overruled case or repealed piece of legislation to make a point, for example as to why it was repealed/overruled and why this is important (or even problematic), then you should of course cite these relevant authorities. However, if you are making a point as to where the law stands or the current position of the courts on a certain area of law, then make sure you are using the up-to-date law. Westlaw and Lexisnexis will usually state whether a case is good in law or has been overruled by a later judgement.
Thirdly, make sure to leave a digital trail of the sources you come across and decide to use. There are few things more frustrating than having a great quote, argument or point of law, but you cannot remember where you got it from because it has not been specified in your notes, this is disorganised. If you are using a piece of legal authority or academic article to make this point in your notes, make sure to note it down in its’ full citation, with the relevant paragraph or page number where appropriate. This makes it much easier to copy and paste the citation into your footnotes where needed when writing your plan, and in the final essay.
When you are making a point that is not your own, or referencing a case or statute, cite it properly. Plagiarism is a very real issue in academic essay writing, and the Turnitin police will kill your essay in its tracks, no matter how great your arguments are. This is why being familiar with OSCOLA is fundamental. Plagiarism often happens as a result of poor note taking, so make sure to be thorough in including proper and full citations in your research notes. If the letters and numbers at the end of a case name or journal article name looks like gibberish to you, and you have no idea what they mean or how to use them, then it’s time to read up on the OSCOLA guide. The main areas of the guide you will want to focus on are primary sources (legislation, cases) and secondary sources (articles, journal publications, books). Get a grasp on the methods behind citing these, and the cross referencing ‘gadgets’ used to make your life easier (such as ‘Short title (n…)’ as referenced above, and how to use ‘ibid’), and you will sidestep this issue in no time.
GET A TUTOR
Yes, a tutor can certainly help you with legal research! It can be an overwhelming task to navigate the vast world of legal databases and sources, so having a tutor by your side can greatly simplify the process. A legal research tutor can help you understand the different types of legal resources available, including statutes, case law, and secondary sources. They can also guide you through the research process, from identifying relevant keywords to developing effective search strategies. With their assistance, you can effectively and efficiently conduct legal research, ultimately leading to stronger arguments and more successful outcomes in your legal work.
